83 Ky. 21 | Ky. Ct. App. | 1884
delivered the otihiou oe the court.
This is an action to recover damages for an injury received by appellant through the alleged willful and gross negligence -of appellee while appellant was in its employ as brakeman. Appellee denied any kind of negligence, and pleaded contributory negligence on the part of appellant. On application of appellee, the jury were required to answer certain questions, in the nature of a special verdict, and at the same time appellant also propounded numerous questions which were answered by the jury; but the-court, on the application of appellant, refused to instruct the jury to find a general verdict, and neg-> lected to define to the jury the meaning of willful or gross negligence.
The facts testified to by appellant are, that he was. breaking on a freight train of appellee near McHenry mines, when the train was divided into two sections,, and appellant directed by the conductor, who remained with the rear section, to go with the front section, to which the engine was attached, down to-the switch at McHenry mines, and throw the switch so the rear section might follow and be run on to the side-track, and that,, when he had so thrown the switch, to cause two whistles to be sounded, and that the conductor would then bring down the rear section-
The principal complaint of appellant is, that the* court refused to direct a general verdict in addition, to the special findings; that the court erred in not defining to the jury the difference between ordinary
To the first inquiry presented’ to the jury at the request of appellant they* found that appellant was damaged by the collision in the sum of $5,000. The second was as follows: “If you say he was damaged, was the injury the result of plaintiff’s own negligence or the negligence of the defendant?”
Answer. “Plaintiff’s own negligence.”
The 5th is: “If you find that the engineer was negligent in not giving the proper signal of his movements at the time of the alleged injury, then you will say so, and also whether said negligence was gross or only ordinary?”
Answer. £ £ Ordinary. ’ ’
The seventh requires the jury to say whether, at the time of or before the collision, the engineer and ■conductor, by ordinary care, could have prevented the injury.
Answer. “At the time they could not.”
The eighth requires the jury to say whether, if the car wrecked was defective, “it could have been discovered by the close scrutiny and inspection of .skillful and competent inspectors.” The jury answer: “We think not.”
On the request of appellee, the jury found that the engine was signaled to move back by appellant, .and that he gave the signal of his own accord, without any direction from the conductor or any one else. 'The 6th inquiry for appellee was: “Would said acci■dent in which plaintiff was injured have occurred if
Answer. “No.”
The 14th inquiry is: “Did the employes of the defendant, other than plaintiff, upon said two parts of said train while said sections were approaching each ■other, and as soon as they knew there was danger of .a collision thereof, or as soon as they reasonably might have known it, make the proper effort to stop said car .and prevent such collision?”
Answer. “Yes.”
A consideration of the questions raised by counsel involves the necessity of construing sections 317, 326, 327, 328 and 329 of the Civil Code.
Subsection 5 of section 317 is: “Either party may .require the court to direct the jury to find a separate-general verdict with the general verdict, or to find a special verdict. If a special verdict be so required, the questions of law may be reserved by the court until after verdict; but if a general verdict be required, either party may ask written instructions to the jury on points of law, which shall be given or refused by the court before the commencement of the argument to the jury.”
Subsections 1, 2, and 3 of section 326 defines the meaning of the different verdicts that may be returned under the Code.
Subsection 1. “A general verdict is that by which the jury pronounces generally upon all the issues, for the plaintiff or for the defendant.
Subsection 2. “A separate-general verdict is the
Subsection 3. “A special verdict is the finding of facts by a jury, as shown in their answers to questions submitted to them in writing.”
Section 327 of the Code is: “Unless otherwise directed, the jury may find a general, or a general and separate-general verdict; or a special verdict, with, or without a general, or a separate-general verdict; but the court may, without motion, or, upon the. motion of a party, shall, direct the jury to find—
“First. A separate-general verdict as to any issue,, and with such finding the jury shall also return a-general verdict; and, if the separate-general verdict be inconsistent with the general verdict, judgment shall be rendered pursuant to the former; or,
“Second. A special verdict; and, on such finding, the jury shall return a special verdict only; and the. court shall render judgment upon it.”
Section 328 is: If a general and a special verdict be-inconsistent, judgment shall be rendered pursuant to. the latter.”
Section 829 is: If, by a general verdict, either party be entitled to recover money of the adverse party, the; jury, in their verdict, must assess the amount of recovery.”
The first inquiry is as to what is meant by a “separate-general verdict.” So far as we are informed, there is no such provision, that has been judicially construed, in any of the American codes of civil procedure. It is not found in our Code of 1854, which was superseded by the present Code herein quoted*
The meaning of the expression “separate-general verdict” is, that the verdict is separate as to the particular issue as distinguished from, any other issue in the case, and general as to the particular issue. That is, it was intended to apply in cases where there is more than one issue. For instance, an action upon an alleged contract when the issues presented are — first, was the contract procured by fraud or duress? and second, if it was so procured, ■and, therefore* voidable, was it subsequently ratified ■by the defendant after a full knowledge of the fraud and the removal of the duress? If, in such case, the jury should find a general verdict for" the defendant, the court could not determine whether it was based upon the ground that the evidence authorized the conclusion that there was fraud or duress sufficient to invalidate the contract, or upon the ground that there was not evidence requisite to •establish a ratification. The evidence might preponderate in favor of the conclusion that there was fraud or duress sufficient to invalidate the contract, ■but at the same time the evidence upon the issue of
The propriety and usefulness of this provision of' the Code as to separate-general verdicts may be better illustrated by a case where the issues are — first, whether the defendant was an infant when he purchased goods from the plaintiff; second, whether, if' he was then an infant, he ratified the contract after he become of age; and third, whether, though he was an infant when he purchased the goods, they were suitable to his financial condition and to his-station.
In such a case a general verdict for the plaintiff would leave it uncertain, whether the jury went upon the ground that the defendant was of age when lie purchased the goods, or upon the ground that he ratified the contract after coming of age, or upon the ground that the 'goods were necessaries; and, consequently, the court could not grant a new trial, if there were evidence conducing to sustain the plaintiff’s allegations as to any one of the issues; though there may have been a preponderance of evidence against him upon that issue, and though he may have failed to sustain his allegations upon the other issues. This is the instance given by the editors of the Code of the evil probably intended to be provided against by the adoption of this section. If a separate-general verdict is asked for, the court shall grant it, and with it shall require the jury to return'a general verdict. In such cases it is not only proper but necessary that the jury should be instructed by the court as to the law
The complaint by counsel for appellant, that the requests for special verdicts were more numerous than the case required, is well founded; but they are neither so numerous or irrelevant as- to have,
The failure of the court to instruct the jury as to what is ordinary and what is willful or gross neglect 'was not error, because when all the facts are found by the jury, this is a question of law properly reserved by the court under section 317 of the Code. Such an instruction would be essential where the jury are directed to find a separate-general verdict on an issue where the. verdict would turn upon the character or degree of negligence.
Judgment affirmed.